CONSTITUTIONAL AMENDMENTS

On November 2, 2010, five proposed constitutional amendments will appear on the New Mexico general election ballot as the result of passage of joint resolutions by the New Mexico Legislature in its 2009 and 2010 regular legislative sessions. For adoption, a constitutional amendment requires ratification by a majority of those voting on the constitutional amendment. Proposed constitutional amendments become effective upon approval by the voters unless an effective date is provided within the text of the proposed amendment.

BRIEF ANALYSIS AND ARGUMENTS FOR AND AGAINST
The full text of each amendment with "for and against" arguments prepared by Legislative Council Services staff can be found on the New Mexico Legislature's website.
See also the Secretary of State's Voter Guide to
the Constitutional Amendments and General Obligation Bonds, in English and in Spanish.
The following information includes the text of each proposed amendment with a brief analysis of the amendment and a summary of arguments for and against the amendment.

CONSTITUTIONAL AMENDMENT NO. 1

A joint resolution proposing an amendment to Article 9, Section 14 of the Constitution of New Mexico to permit the establishment of a college scholarship program for New Mexico military war veterans.

Brief Analysis
Constitutional Amendment No. 1 would create a new exception to the "anti-donation clause" to allow the state to establish a veterans' college scholarship program for military war veterans of conflicts that began after August 1, 1990. The scholarship would exempt those veterans from payment of tuition and would be administered in a similar manner as the scholarship for Vietnam conflict veterans. In order to be eligible for the scholarship, military war veterans must exhaust all educational benefits offered by the United States Department of Defense or the United States Department of Veterans Affairs, have been honorably discharged, have been a resident of New Mexico at the original time of enlisting, or have lived in New Mexico for 10 years, and awarded a campaign medal for service after August 1, 1990.

Arguments For:

Currently the constitution allows the state to establish a scholarship program only for Vietnam veterans. The anti-donation clause prohibits other veterans from receiving that scholarship.

State institutions already provide statutorily or constitutionally created scholarships, grants, and loan-for-service programs to many other groups. Veterans who served in a conflict after 1990 are equally deserving of a scholarship program at state institutions.

Supplementing existing federal educational programs and providing veterans the opportunity to start and finish their education at any time will provide additional opportunities to veterans, help them earn a higher income, establish a more educated work force, and attract economic development to New Mexico.

The residency requirement in this proposed amendment is identical to the residency requirement for those veterans of the Vietnam conflict who might be seeking a scholarship. That long-standing residency requirement has not been challenged, and there is no reason to believe that it will be.

Arguments Against:

The amendment might invite a potentially disruptive legal challenge. Establishing a residency requirement for veterans to receive a scholarship is not an acceptable basis on which to grant or deny state benefits. The U. S. Supreme Court has prohibited similar restrictions on benefits offered to veterans, citing violations of the equal protection and the right-to-travel protection clauses of the United States Constitution.

The exclusion of veterans who served in conflicts between 1975 and 1990 might violate the equal protection clauses of the federal and state constitutions.

While veterans have served their country and are deserving of honor and support, a change to the anti-donation clause will enrich only this one specific group.

If the state voluntarily provides educational benefits to veterans, this will only encourage the federal government to shift more of its responsibilities to the state.

It is irresponsible to add to the state's financial problems by approving another unfunded program that will result in increased tuition for other students or increased taxes for New Mexico residents.

A joint resolution proposing to amend Article 10, Section 2 of the Constitution of New Mexico to allow county officials to serve three consecutive terms instead of two.

Brief Analysis
Constitutional Amendment No. 2 proposes to amend Article 10, Section 2 of the Constitution of New Mexico to allow county officials to serve three consecutive terms instead of two.

Arguments For:

This amendment strikes a balance between those who want to ensure that a county officer will not take advantage of incumbency and those who recognize the value of having public officers who are experienced and knowledgeable. There still would be term limits, but officials who earn the support of the voters will be allowed the chance to run for and serve in office for one additional term before being barred from holding county office for a two-year period.

The pool of eligible and capable individuals within a county, especially in New Mexico's many low-population counties, is often quite small. Term limits artificially limit the choice of available and qualified candidates for elective office. Incompetent or corrupt officeholders may always be voted out.

County governments in New Mexico have the oldest and most restrictive term limits in the United States, according to the National Association of Counties. County officials must be permitted to gain and use the expertise that three consecutive terms afford.

Unelected officials, such as long-time career bureaucrats, gain power when elected officials leave office after only two terms.

Arguments Against:

The proposed amendment makes no distinction between large and small counties, and it does not recognize the wisdom in preventing public officers from taking advantage of incumbency.

Longer terms of service allow official and special interests to become more entrenched.

Extending the current limit to 12 years would not provide any more time to gain experience, but would limit the ability of those with new ideas and energy to compete against officeholders who can use the advantage of incumbency to defeat most newcomers.

A joint resolution proposing an amendment to Article 7, Section 1 of the Constitution of New Mexico to modernize language on qualified electors by removing language denigrating persons with developmental disabilities, adopting federal requirements to vote, defining mental incapacity for voting purposes and restricting felons from voting except as restored by statute.

Brief Analysis
Constitutional Amendment No. 3 proposes to change several provisions that control who may vote in New Mexico's elections. The proposed amendment to Article 7, Section 1 would:

Replace the language regarding the right to vote of persons over 21 years of age with the federal constitutional standard, which guarantees the right of United States citizens who are 18 years of age or older to vote.

Remove the durational residency requirements, which are already effectively preempted by federal law, and authorize the legislature to determine those requirements in accordance with federal law.

Replace the provision that guarantees New Mexico residents the right to vote in all elections for public officers with a provision that guarantees the right to vote to persons who are United States citizens and otherwise qualified to vote under federal law, subject to residency and registration requirements enacted by the legislature.

Allow the legislature to determine if convicted felons will be able to vote or not, regardless of whether the convicted felons have served the entirety of their sentences.

Guarantee that qualified electors will be eligible to vote in all elections in New Mexico rather than just elections for public officers, which presumably would prohibit voter eligibility restrictions based on property ownership or other restrictions currently in effect for some special district elections.

Remove the constitutional restriction on "idiots" and "insane persons", but allow the legislature to restrict citizens from voting by reason of mental incapacity, which is limited to "persons who are unable to mark their ballot and who are concurrently also unable to communicate their voter preference".

Arguments For:

The right of citizens over the age of 18 to vote is established by the 26th Amendment to the United States Constitution, and the imposition of durational residency requirements is limited by federal law. New Mexico already complies with federal law governing voting rights. Eliminating provisions in Article 7, Section 1 that conflict with federal requirements will bring the Constitution of New Mexico into accord with federal law and New Mexico statutes.

Despite a title that indicates the opposite, the proposed amendment eliminates the current constitutional provision that prohibits voting by convicted felons who have not been restored to political rights. Removing this prohibition will allow the legislature to decide whether to extend the right to vote to some of the most disenfranchised citizens of the state, while maintaining the flexibility to limit the right of felons to vote if the legislature deems it appropriate.

In addition to the other proposed changes, this amendment would replace "idiots" and "insane persons" with "mental incapacity", defined as persons who cannot mark a ballot and are unable to communicate their voting preference.

Arguments Against:

The amendment invites a potentially disruptive legal challenge because the ballot title does not accurately reflect the language and provisions contained in the body of this amendment. The ballot language can lure voters to cast their votes based on the provision to remove language denigrating persons with developmental disabilities, rather than on all of the provisions.

This proposed amendment forces a voter to accept more than one proposal or none at all, rather than having the choice of voting on each proposal separately. Combining two independent provisions in the same piece of legislation is prohibited by the New Mexico Constitution.

Limitations on the power of the legislature to determine who may or may not vote should remain part of the constitution. Constitutional Amendment No. 3 gives the legislature too much power to determine the eligible electorate.

The amendment defines mental incapacities as physical limitations. It is not wise to entirely remove the state's ability to pass legislation that disqualifies persons from voting on grounds of mental unsuitability. Denying persons with severe mental deficiency or dementia the right to vote is good public policy.

CONSTITUTIONAL AMENDMENT NO. 4

A joint resolution proposing an amendment to Article 8 of the Constitution of New Mexico to provide a property tax exemption for property of a veterans' organization chartered by the United States Congress.

Brief Analysis
A joint resolution proposing an amendment to Article 8 of the Constitution of New Mexico to provide a property tax exemption for property of a veterans' organization chartered by the United States Congress.

Arguments For:

Property belonging to churches and charitable organizations is not taxed. Therefore, the property of veterans' associations, which are also charitable organizations, should not be taxed. Since state courts have not allowed veterans' organizations tax-exempt status under current exemptions for charitable organizations, the constitutional amendment is necessary to provide the property tax exemption.

This amendment ensures that only legitimate veterans' organizations chartered by the U.S. Congress will receive the property tax exemption. Because the burden to prove eligibility is on the organization, resources spent by the state to verify eligibility will be minimal.

While providing important tax relief to organizations benefiting our veterans, exempting the few congressionally chartered veterans' organizations in the state will have a minimal fiscal impact. According to the Veterans' Services Department, there are 175 veterans' organizations in New Mexico.

Arguments Against:

Veterans already receive several specific tax benefits provided by the Constitution of New Mexico and the Property Tax Code.

The proposed property tax exemption would reduce the net taxable value of property in the state and have the effect of raising property tax rates for all other taxpayers. It is not wise public policy to raise property taxes on everyone else in the state during a national recession in order to exempt social clubs.

The activities of the veterans' organizations benefit the membership of the organization and not the general public. Moreover, the property tax exemption would not benefit individual veterans directly.

This amendment ignores the many groups with organizations of their own that have made sacrifices, such as schoolteachers, firefighters, police officers and other public servants. Providing benefits for veterans is a federal responsibility, and the state should not relieve the federal government of that responsibility.

CONSTITUTIONAL AMENDMENT NO. 5

A joint resolution proposing an amendment to Article 4, Section 28 of the Constitution of New Mexico to allow the appointment of certain former members of the legislature to civil offices in the state in a limited situation.

Brief Analysis
Constitutional Amendment No. 5 would allow a member of the legislature to be appointed to a civil office during the term of the legislature for which the member was elected, in limited situations. A member of the legislature may be appointed to civil office if that member resigns from the legislature prior to the appointment and if the civil office was not created, nor the salary for the position increased, during the term from which that member resigned.

Arguments For:

Legislators gain a great deal of knowledge about how state government works. Vacancies in other branches of government might be difficult to fill because of the scarcity of relevant expertise, especially in states with a small population such as New Mexico.

This exception to the current prohibition on the appointment of legislators to civil office during their terms of office still protects the public against self-dealing politicians.

State lawmakers are unpaid citizen legislators whose only compensation is per diem and mileage for their service. Current law does not allow a legislator to resign to accept an appointive position, paid or unpaid, in any civil office. This proposed amendment recognizes that the legislator, after resigning, should not be barred from a position in government.

Arguments Against:

Prohibiting a legislator from resigning in order to be appointed to civil office prevents the possibility of undue influence over the legislator by the appointing official. Because it is very difficult to prove such conduct, the state's constitution makes certain the temptation to provide legislative favors in exchange for appointment to a civil office is eliminated.

Although the prohibition on appointing a legislator to a civil office during the term for which the legislator is elected has been in the state constitution since its adoption in 1912, the appearance of corruption in the appointive process still could threaten the integrity of the executive or legislative branches of government.

The amendment allows a select few individuals to become, in effect, "power brokers" with a "corner" on the influence and privileges of political office. If legislators are allowed to resign and then be appointed to civil offices, an appointing official may appoint a legislator in order to influence the outcome of legislation.